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Melbourne Law School - Research Publications
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ItemRemedies: Reflections and PerspectivesBant, E (Singapore Academy of Law, 2016)As Andrew Phang JA reminds us in his leading article in this special issue, the law of remedies has always been a subject of acute, perhaps pre-eminent, interest to counsel and clients engaged in private law disputes. It may be added that transactional lawyers are also only too aware of its significance in contract planning and drafting, as recent decisions on the doctrines of penalties by the highest courts in England and Australia attest.' However, its proper appreciation across legal practice has not always been reflected in the teaching and formal study of the subject.
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ItemLimitations on Defendant Liability for Misleading or Deceptive Conduct Under Statute: Some Insights from Negligent MisstatementBant, E ; Paterson, J ; Barker, K ; Grantham, R ; Swain, W (Hart Publishing, 2015)Liability for having induced another to act to their detriment on the basis of a negligent misstatement can arise under the general law through a number of different avenues. The statement may be the subject of a contractual warranty. Liability may arise extra-contractually pursuant to the common law and equitable doctrines of mistake, estoppel, misrepresentation, and, following the decision in Hedley Byrne & Co Ltd v Heller & Partners Ltd, negligent misstatement. All these claims have different elements and yield diverse remedial outcomes.
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ItemIn the Age of Statutes, Why Do We Still Turn to the Common Law Torts?: Lessons from the Statutory Prohibitions on Misleading Conduct in AustraliaPaterson, J ; Bant, E (LexisNexis, 2016)One unique feature of Australian Consumer Law is that the protection afforded by the statutory prohibition on misleading conduct is not limited to individual consumers but extends to all parties in ‘trade or commerce’. Liability under the statutory regime does not require any element of fault and offers a broad range of remedies to successful plaintiffs. One might expect a diminished role for common law torts in this context. However, while this is perhaps true of the torts of passing off and deceit, the tort of negligent misrepresentation continues to influence commercial litigation. This article explores this trend and the possible reasons for it. What has happened in Australia in regard to the statutory prohibition on misleading conduct may provide lessons in other contexts and for other jurisdictions about the relationship between the common law and overlapping statutory claims.
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ItemStatute and Common Law: Interaction and Influence in Light of the Principle of CoherenceBANT, E (University of New South Wales, Faculty of Law, 2015)
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ItemTrusts, powers and liens: An exercise in ground-clearingBANT, E ( 2009)
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ItemINCAPACITY, NON EST FACTUM AND UNJUST ENRICHMENTBant, E (MELBOURNE UNIV LAW REVIEW ASSOC, 2009)
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ItemCausation and scope of liability in unjust enrichmentBANT, E ( 2009)
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ItemThe change of position defenceBANT, E (Hart Publishing, 2009)
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ItemPayment over and change of position: lessons from agency lawBANT, E ( 2007)
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ItemUnjust Enrichment in AustraliaEdelman, J ; BANT, E (Oxford University Press, 2006)